1872. V. PRINCE character. And, in connection with this subject, I Sentence condemning cases of merchandise SPECIA THE QUEEN against MORROW (a). PECIAL case stated under 13 Vic., No. 8. "In this case (which was tried before me at the Central Criminal Court, Darlinghurst), the prisoner was charged, as the 'servant of the Trustees' of the Perseverance Lodge Friendly Society of Odd Fellows, with having embezzled certain moneys of the Society, received by him as such servant. "The Society was duly constituted, and the certified under the Friendly Societies Act, 17 No. 26. By the Friendly Societies Act, 17 Vic., No. 26, s. 11, all moneys, &c., rights or claims belonging to or held by any society -the rules of rules which are certified under Vic., the Act-are "By section 11 of the Act, all hereditaments, moneys; goods, &c., and all titles, securities, &c., for money, and all rights or claims belonging to or held by such Society, are vested in the trustees for the time being, for the use vested in the trustees for time being, for the use and benefit of such society spective mem and the re bers thereof. According to the rules of a Friendly Society, certified under this Act, the financial secretary was elected by the members, and might be dismissed by them. He was paid his salary by the trustees through the treasurer, who was elected in like manner. It was his duty to receive the subscriptions of the members, and to pay over the amount to the treasurer. The prisoner, being a member of the society, and its financial secretary, was convicted of having embezzled certain moneys of the society, being charged with having done so as the "servant of the trustees." Held (Hargrave, J., dissentiente), that he was rightly so charged. (a) Before Stephen, C. J., Hargrave, J., and Fauceit, J. 1872. and benefit of such Society and the respective members THE QUEEN thereof. V. MORROW. "According to the practice, and, it would seem, the rules of the Society, the financial secretary was elected by the vote of the majority of the members present, at a meeting of the members of the Society duly convened; and, if necessary, he should be dismissed in the same, manner by a vote of the majority of the members present at a similar meeting. "The trustees might or might not be present at such meetings; but, if present, they voted merely as members of the Society, and had no special vote or authority as trustees at such meetings. "The prisoner had been duly elected financial secretary at such a meeting of the members, and the trustees treated him as secretary, and paid him his salary through the treasurer, who was elected in the same manner. He continued secretary for nine or ten years, during all which period he was at the same time a member of the Society; and it was while he was so secretary and member that the alleged embezzlement took place. "It was the prisoner's duty as secretary to receive the subscriptions of the members. The subscriptions so received he acknowledged, by signing his initials on cards which the members kept. It was his duty, afterwards, to enter the subscriptions so received in the account books of the Society, and to pay over the amount to the treasurer periodically, who acknowledged the receipt in such books. "In two out of the three instances set out in the information, it appeared that the prisoner had received the sums mentioned, and acknowledged the receipt upon the cards of the members, but had not entered them in the account books of the Society, nor paid them over to the treasurer. The prisoner ceased to be secretary; and a committee, which was appointed by the members, having found these and a great many other discrepancies between the cards of the members and the account books, summoned him to attend a meeting, to explain or account for them. He did not attend, and, shortly after, The left Sydney without offering any explanation. trustees not knowing where he was, took out a warrant, and under it he was brought up from Shoalhaven, where it was said he was living with some relations." [The case then stated several objections taken by the prisoner's counsel, which his Honor overruled and reserved for the consideration of the Court; but it is only necessary in this report to state the principal one, viz., that the prisoner was not the servant of the trustees.] "P. FAUCETT. "March 4, 1872." The prisoner was not represented. Foster appeared for the Crown. [Stephen, C. J. I see that in R. v. Tyree (a) it was held that the treasurer of a friendly society, whose duty it was to receive moneys paid into the society, the property in which was vested in the trustees, was not a clerk or servant of the trustees, liable to be indicted for embezzling their moneys.] This is a different case. Tyree was treasurer, received no salary, and gave security to account, and, besides, there was no period fixed for his accounting. Here the prisoner was the financial secretary or clerk; he was paid for his services by the trustees through the treasurer, and it was his duty to receive their moneys and pay them over to the treasurer periodically. [Hargrave, J. What acts of service to the trustees have you proved to shew that the prisoner was their clerk or servant? He was not appointed or removable by them, and the circumstance that his salary was paid by them does not of itself constitute him their clerk or servant.] By the statute, 17 Vic., No. 26, all "rights and claims belonging to the society are vested in the trustees." They had, therefore, a right to the services of the financial secretary. The moneys he collected were in law their property, and they could require him to account for them at stated times. The essence of the (a) 38 L. J. M. C. 58. 1872. THE QUEEN V. MORROW. March 8. 1872. V. MORROW. relation between the financial secretary and the trustees THE QUEEN is, that he is their paid servant, charged with the duty of receiving their moneys, and handing them over to the treasurer as their agent. It is only an accident of that relation that the financial secretary is appointed and removable by the members at large. Who could be sued for his wrongful dismissal? Not the members, but the trustees. But there are authorities directly to the point. In R. v. Jenson (a) it was held that the clerk of a savings bank, though appointed by the managers, was properly described as clerk to the trustees. To the same effect are R. v. Hall (b), R. v. Murphy (c), R. v. Woolley (d), Reg. v. Callaghan (e), and Russell on Crimes (ƒ). STEPHEN, C. J. In one sense, the moneys embezzled -for there is no doubt of the actual fact of embezzle. ment were the property of all the members of this society, of whom the prisoner himself was one. But the statute has put the legal relation of the parties on a different footing, for it vests all the property, moneys, and rights of the society in the trustees. The fact, that the financial secretary was appointed and dismissible by the members, does not affect the rights of the trustees. He was paid by them; the moneys he dealt with were legally theirs; and it was his duty, according to the rules, to receive and pay them over in a certain way and at certain times. If the trustees saw him neglect his duty, could they not say to him " go immediately and pay over to the treasurer the moneys in your hands belonging to us?" I think, therefore, he was properly described as the servant of the trustees. If he had received such injuries as to incapacitate him from performing his duties, could not the trustees bring an actionper quod servitium amiserunt? I am clearly of opinion that this case comes within Jenson's case and Murphy's case, cited by Mr. Foster. R. & M. C. C. R. 434. (6) R. & M. Ç. C. R. 474. HARGRAVE, J. In all cases of embezzlement it is necessary to show that the relation of master and servant subsists, and I think it has not been shown that the trustees of this society were the masters of the prisoner. There is no evidence of any acts of service performed to them by him. The moneys he received he paid not to them, but to the treasurer, and this was his duty under the rules. No doubt, under the Act, the moneys of the society were vested in the trustees; but there is nothing to shew that the financial secretary was their subordinate. On the contrary, he was elected like themselves. by the members, and it was only by the members at large that he could be dismissed. Neither in his appointment nor dismissal had the trustees any greater voice than any of the other members. I think, therefore, the conviction should be quashed. It is easy enough for friendly societies to shape the application of the law of embezzlement to such a case; as for instance, by passing a rule or resolution appointing the financial secretary to be the servant of the trustees, and requiring him to accept the office under that condition. FAUCETT, J. I am of opinion that the conviction should be sustained, both on principle and on the authorities, which I consider quite decisive. The object of the Act was to obviate the necessity of having recourse to equity-in fact, to meet this very case. And the words of the enactment are very extensive. For whom, in law, did the prisoner receive the moneys? Not for the members, but for the trustees. Whom could he sue for his salary? The trustees only. On every consideration, although I had some doubt at the trial, I think the objection taken cannot be upheld. Conviction sustained. 1872. THE QUEEN V. MORROW. |